THIRD SECTION
DECISION
Application no. 14232/07
Diana RENGIFO ALVAREZ
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 6 December 2011 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 2 April 2007,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Diana Rengifo Alvarez, is a Colombian national who was born in 1979 and, as far as the Court is aware, lives in Luttelgeest. She was represented before the Court by Ms M.L. van Riel, a lawyer practising in Alkmaar. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant travelled to the Netherlands via Aruba from Bogotá, Colombia, on 22 and 23 February 2004. She applied for asylum upon her arrival at Amsterdam (Schiphol) Airport. At the first interview (eerste gehoor), held to determine the applicant’s identity and itinerary, it emerged that she was in possession of a boarding pass for an onward flight from Amsterdam to Tel Aviv.
4. A further interview (nader gehoor) was held on 26 February 2004 to enable the applicant to state grounds in support of her claim for asylum. The applicant stated that she had been active in the department of Valle del Cauca as a member of the youth movement of the political party MPU (Movimiento Popular Unido), visiting towns and villages in the countryside in order to spread political propaganda. Disappointed with the lax and accommodating attitude of her political leaders towards the guerrilla movements active in the country including FARC (Fuerzas Armadas Revolucionarias de Colombia, Revolutionary Armed Forces of Colombia), she had transferred her allegiance and support to the independent presidential candidate Mr Alvaro Uribe, who was campaigning on a platform of robust action against the guerrilla movements. Because of her political activity, she had received crudely-worded death threats by telephone and letter from members of FARC.
5. The applicant was subjected to a supplementary interview (aanvullend gehoor) on 7 May 2004 in which she was questioned about her stated political activities. She gave details of these, and of the death threats about which she had spoken earlier. She had sought and been granted police protection: police officers had come to visit her from time to time, and one had given her a mobile telephone number to call. She had nonetheless decided to leave her country when the threats failed to diminish. She had obtained a ticket to Tel Aviv because, unlike the Netherlands, Israel was accessible to her without a visa.
6. The applicant’s representative submitted corrections and additions to the report of the supplementary interview on 10 June 2004, and again on 29 June, for addition to the file.
7. On 22 July 2004 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie, “the Minister”) gave reasoned notice of her intention (voornemen) to deny the applicant asylum.
8. Written comments (zienswijze) were submitted on the applicant’s behalf on 17 September 2004.
9. The Minister gave her decision on 7 October 2004, finding that the applicant had actually enjoyed effective protection from the Colombian authorities but had given it up to travel to the Netherlands.
10. An appeal was lodged on behalf of the applicant with the Regional Court (rechtbank) of The Hague, sitting in ‘s-Hertogenbosch, on 27 December 2004. On various dates in the following months various supporting information was submitted. The Minister lodged a written statement of defence on 12 September 2005. The applicant’s representative afterwards submitted further documents.
11. The Regional Court held a hearing on 2 October 2005. It delivered its decision on 16 March 2006. It held the applicant’s appeal well-founded, as the protection admittedly offered by the Colombian authorities had been limited to brief visits by the police to the applicant’s home and could not, in the light of the applicant’s involvement in politics as a political party activist, be considered sufficiently effective to reduce any risk to her to acceptable proportions.
12. The Minister lodged an appeal on 14 April 2006 to the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State).
13. A written response was lodged on the applicant’s behalf on 1 May 2006.
14. Following a hearing on 31 August 2006, the Administrative Jurisdiction Division gave judgment on 12 October 2006 accepting the Minister’s appeal and, deciding anew, retrospectively rejecting the applicant’s appeal to the Regional Court as ill-founded. It held that the protection offered by the Colombian authorities could not be dismissed as ineffective, as the applicant had fled Colombia after receiving a new death threat but without giving the protection a chance to be effective.
15. The applicant lodged a second asylum application on 15 March 2007. She was interviewed in connection with new facts and circumstances (gehoor nieuwe feiten en omstandigheden) on the same day. She alleged, among other things, that a family of Colombian would-be refugees whom she had met in the Netherlands in February 2004 had been murdered, apparently by FARC, after having been returned to Colombia.
16. On 20 March 2007 the Head of the Immigration and Naturalisation Service (Immigratie- en naturalisatiedienst) gave reasoned notice of the intention to reject this second asylum request also, given that it remained the case that the Colombian authorities had shown themselves willing and able to offer the applicant protection against the FARC.
17. On 21 March 2007 the Deputy Minister of Justice (Staatssecretaris van Justitie, “the Deputy Minister”), who by this time had replaced the Minister for Immigration and Integration as the minister responsible for the implementation of aliens law, gave a decision rejecting the applicant’s second asylum request as unfounded on the ground that, whatever the value of the new facts stated by the applicant, and even if they could be lawfully established, it remained the case that the Colombian authorities had been prepared to offer her protection.
B. Relevant domestic law
1. The Aliens Act
18. Under section 29 of the 2000 Aliens Act (Vreemdelingenwet 2000), an alien is eligible for a residence permit for the purposes of asylum if, inter alia,
- he or she is a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951, or
- he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.
2. The Aliens Act Implementation Guidelines 2000
On 25 September 2009 the Deputy Minister of Justice adopted a new paragraph of the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000) setting out the policy to be followed with regard to asylum seekers from Colombia (Staatscourant (Official Bulletin) 2009, no. 15037, published 5 October 2009). As relevant to the present case, it reads:
“6.6 Protection by the authorities
Within Colombia there exist a number of protection programmes for persons fearing persecution by one of the warring parties. Admission to one of these programmes is, however, not possible for everyone. In addition, in a number of cases effective protection will not be possible.
Asylum seekers who claim to fear persecution by one of the warring parties will have to make out a case that they cannot qualify for protection or that effective protection is not possible in their case.
In principle, asylum seekers who report their problems to the authorities can be expected to await the reaction of the authorities. Persons who report to the authorities and leave Colombia immediately without awaiting any reaction will have to provide a satisfactory explanation why it was not possible for them to await the authorities’ reaction.
If asylum seekers cannot satisfy us that in their case protection cannot be provided, then there is no reason to grant them a residence permit for asylum purposes based on section 29 of the Aliens Act.”
C. The situation in Colombia
19. Mr Alvaro Uribe, the presidential candidate supported by the applicant, was elected president of Colombia for the first time in May 2002. He won a second term in May 2006. In June 2010 Mr Juan Manuel Santos, who had been minister of defence under President Uribe, was elected president.
20. According to the official country report (ambtsbericht) on Colombia published by the Netherlands Ministry for Foreign Affairs in September 2008, the presidency of Mr Uribe was characterised by the expansion and strengthening of the Colombian armed forces and police. The guerrilla movements had largely been forced back into rural areas, although they were still predominant in certain areas including parts of the department of Valle del Cauca. However, protection programmes existed; one of these, operated by the Ministry of Internal Affairs and Justice, was available for trade union leaders, human rights activists, mayors and former mayors, journalists, witnesses of human rights violations, leaders of social organisations in general, members of the left-wing Union Patriótica party (now defunct) and the Communist Party, elected members of local government bodies and local ombudsmen. This programme, for which 40 million United States dollars had been reserved in 2008, protected 9,500 individuals at that time.
21. In 2010 the Netherlands Ministry for Foreign Affairs published the following advice to Netherlands nationals travelling to Colombia:
“...
Terrorism
In the rural areas confrontations still occur between guerrilla groups, new illegally armed groups, drugs cartels and Colombian armed forces. Attacks occur regularly in the country, sometimes also in urban areas. Colombia is one of the countries with the highest numbers of landmine victims in the world. In rural areas, in particular those to which non-essential travel is to be avoided, you are therefore advised always to follow local advice about the possible presence of landmines.
Serious crime
Serious crime and terrorism go hand in hand in Colombia. The terrorist organisations FARC and ELN [Ejército de Liberación Nacional, National Liberation Army], as well as drugs cartels and so-called new illegally armed groups are involved in drugs manufacturing and trading, abductions, extortion, smuggling and other serious criminal activity.
You are advised to be vigilant in connection with possible attacks in busy areas and in the vicinity of government and military buildings.
...
Unsafe areas
Owing to the presence and activity of illegally armed groups such as FARC and ELN you are advised not to travel at all to the regions of Putumayo, Nariño (not including Pasto), Norte de Santander (not including Cucuta), Caqueta (not including Florencia, provided that one travels there by air), Aurauca and La Macarena National Park and surrounding area.
You are advised to avoid non-essential journeys to Colombia’s rural border areas, rural areas in Caqueta, Guaviare, the south and west of Meta, Huila, Cauca, the south and west of Valle del Cauca, Chocó, Bolivar, Sucre, Cesar, Antioquia and the Sierra Nevada de Santa Marta.
Visits to the tourist spots, such as the coffee-growing area (‘Eje cafetero’), Cartagena, Santa Marta, San Andrés, Provincia and Leticia, involve no security risk as long as normal precautions are taken. This also applies to the more affluent quarters in the major cities Bogotá, Medellín, Cali, Barranquilla, Popayán, Pasto and Villavicencio and the departments of Cundinamarca and Boyaca.”
22. The applicant has submitted a list, taken from Wikipedia, of attacks which she states were carried out by FARC in the department of Valle del Cauca between 15 May and 20 September 2011. Almost all of the 108 attacks listed are directed against military and police targets, money transports and infrastructure (e.g. roads, pylons). The victims are mostly soldiers, sometimes police officers; on two occasions “politicians”; on two occasions oil workers. Unidentified civilians are listed as victims of three attacks.
23. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia (27 May 2010, HCR/EG/COL/10/2) contain the following information (page 4, footnote references omitted):
“Following decades of intense fighting, a negotiated peace process with the FARC took place between 1998 and 2002. The negotiations eventually broke down in February 2002 and the conflict resumed, creating large population displacement. Since 2003, President Alvaro Uribe committed to defeat the guerrillas pursuant to the ‘Democratic Security and Defence Policy’. The current military efforts, such as the killing of FARC’s chief commanders and the dismantling of its military structure, have significantly weakened the FARC.”
It describes eleven categories at risk, namely “Present and Former Members and Supporters of one of the Parties to the Conflict”, “Local and Regional Government Authorities”, “Judges and Other Persons Involved in the Administration of Justice”, “Civil Society and Human Rights Activists”, “Journalists and Other Media Professionals”, “Trade Union Leaders”, “Teachers, University Professors and College Students”, “Indigenous Peoples and Afro-Colombians”, “Women with Certain Profiles”, “Children with Certain Profiles” and “Marginalized Social Groups”. The category “Women with Certain Profiles” includes women victims of forced displacement, women victims of violence (sexual abuse and sexual violence, torture, mutilation, forced prostitution, forced public nudity) at the hands of illegal armed groups, forcibly recruited women (i.e. for purposes such as sexual servitude), indigenous women or women of Afro-Colombian descent, and women who are victims of domestic violence (pages 20-22).
COMPLAINT
24. The applicant complained under Article 3 of the Convention that deportation to her native Colombia would expose her to the risk of inhuman or degrading treatment at the hands of FARC.
THE LAW
25. The applicant alleged that she would be in danger from FARC if forced to return to her native Colombia. She relied on Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
In the submission of the Government, no such danger had been established.
A. Argument before the Court
1. The Government
26. The Government accepted that the applicant might have received threats from FARC but considered it implausible that she was of any particular interest to them since she had been inactive in Colombian politics at least since leaving Colombia.
27. Moreover, the applicant had in 2002 supported Mr Alvaro Uribe, who had gone on to win the presidential elections; she could therefore hardly claim to have held a minority opinion.
28. They also submitted that the applicant had sought, and received, protection from the authorities; the protection offered had been as effective as could reasonably be expected at that time.
29. Finally, they pointed to the country report on Colombia issued by the Ministry for Foreign Affairs in 2008 (paragraph 20 above), which reflected considerable increases in the resources earmarked for protecting individuals at risk and in numbers of persons protected.
2. The applicant
30. The applicant argued that the protection offered by the police before she left Colombia had been ineffective.
31. She also observed that even the official country report of the Ministry for Foreign Affairs recognised that the safety situation in the department of Valle del Cauca had deteriorated. There was nothing to suggest that the threat against her life from FARC had receded; she claimed that she would be in danger throughout Colombia and that the authorities would be powerless to protect her even now.
B. The Court’s assessment
32. It is the Court’s settled case-law that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens, and that the right to political asylum is not explicitly protected by either the Convention or its Protocols. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the individual concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see, among many other authorities, Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 72, ECHR 2009 ...; more recently, and as an example concerning the same respondent Party, Afif v. the Netherlands (dec.), no. 60915/09, § 44, 24 May 2011).
33. With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion. However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see, for example, Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008‑...; Venkadajalasarma v. the Netherlands, no. 58510/00, § 63, 17 February 2004; and Afif, cited above, § 45).
34. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see, among other authorities, Saadi, cited above, § 129). The mere possibility of ill‑treatment in such circumstances is not in itself sufficient to give rise to a breach of Article 3 (Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 111, Series A no. 215).
35. In the Court’s opinion, an important feature of the present case is the political change that has taken place in Colombia in recent years. The presidency was won by the candidate whom the applicant had actively supported, Mr Alvaro Uribe. The expansion and strengthening of the armed forces since Mr Uribe took office has contributed to the weakening of guerrilla movements including FARC, who although they are by no means a spent force, do not control the entire territory of Colombia (paragraphs 20, 21 and 23 above).
36. A further feature of the case is that the applicant, on her own admission, sought and was granted protection by the authorities of her country even before these developments materialised (paragraph 5 above). While this protection was limited in scope, the fact remains that the applicant was not harmed at that time.
37. The applicant’s political activity seems to have been limited to political campaigning for a presidential candidate who was ultimately successful in that he won the presidential elections in 2002 (paragraphs 4 and 19 above). The applicant left Colombia in early 2004. There is nothing to substantiate the applicant’s allegations that FARC is still intent on harming her. Nor, assuming there to be any ground for the applicant’s stated fears, can it be established that the applicant would meet with a refusal were she to approach the authorities for protection or that any protection offered would be ineffective.
38. The Court notes in addition that the applicant does not claim to belong to any of the categories identified by the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum‑Seekers from Colombia as particularly at risk (see paragraph 23 above).
39. Finally, the Court notes the nature of the attacks which the applicant alleges have been perpetrated by FARC in the department of Valle del Cauca region from which the applicant originates (paragraph 22 above). Virtually all these attacks have been against military and police targets and against infrastructure and property. The victims have been overwhelmingly military and police, and sometimes politicians; in only very few cases have there been civilian casualties.
40. The Court accordingly finds that the applicant has not proved the existence of substantial grounds for believing that she would be at real risk of treatment contrary to Article 3 if deported to her native Colombia. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
41. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena TsirliJosep Casadevall
Deputy RegistrarPresident
Full & Egal Universal Law Academy